Citation Nr: 1121304
Decision Date: 06/01/11 Archive Date: 06/09/11
DOCKET NO. 05-25 118 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for a low back sprain.
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The Veteran had active military service from July 1990 to August 2003.
This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In that decision, service connection was established for the low back sprain, and a 10 percent rating was assigned, effective from August 2, 2003. The Appellant currently resides overseas.
In November 2007, the Board remanded the case primarily so that the RO/AMC could readjudicate the Veteran's claim with consideration under the rating criteria effective prior to September 26, 2003, in that he had not been provided with the old rating criteria, nor had the RO considered his claim under the old regulations. Unfortunately the case was re-evaluated under the new regulations and the prior provisions were not provided.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Appellant if further action is required.
REMAND
This appeal stems from an initial grant of service connection, the claim for which was received by VA on August 14, 2003. The regulations for rating back disorders changed effective September 26, 2003. As such, by law appellant is due consideration under both the old and new criteria, and should be evaluated under that criteria which is most favorable, if one is more favorable than the other.
In the November 2007 remand, it was requested that the claim be readjudicated with consideration of the rating criteria effective prior to September 26, 2003. While in remand status some additional claims were developed, but the only readjudication of the claim was done under the new regulations. As such, the case is not yet ready for appellate review as initial consideration by the Board could be prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Furthermore, in view of the time that has passed, a new examination is indicated in order to fully comply with the duty to assist in development of the claim.
Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2010). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined the Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of a Claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).
In this case, the Veteran was last thoroughly examined for VA purposes in 2004. In 2005, he reported that he had a herniated disc, and that he should be reexamined. The Board agrees that a contemporaneous examination would be beneficial to determine the current severity of the Veteran's low back disorder. It is also noted that there are some complaints of radiation, yet reported testing was said to reveal no deficits. Clarification should be undertaken.
Accordingly, the case is REMANDED for the following actions:
1. The AMC/RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his low back disorder, on appeal. Any records that are not currently included in the claims file should be obtained and added to the file. With any necessary authorization from the Veteran, the AMC/RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. If pertinent records are received, the AMC should ensure that VCAA examination and medical opinion requirements under 38 C.F.R. § 3.159(c)(4) are met as to this issue.
2. The Veteran should be afforded an orthopedic examination to determine the current severity of his service-connected lumbar spine disability, including any associated neurological impairment.
The claims folder (or as otherwise indicated appropriate history as the Veteran may be overseas) must be made available to and reviewed by the examiner. This should include a history of the service connected back disorder, to include manifestations that resulted in the grant of service connection. A copy of this REMAND should be provided to the examiner if the claims folder is not forwarded.
Complete ranges of lumbar spine motion should be reported in degrees. The examiner should determine whether the lumbar spine disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups or pain. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range- of-motion loss due to any weakened movement, excess fatigability, or incoordination.
The examiner should specifically identify any evidence of neuropathy due to the service-connected disability, to including reflex changes, characteristic pain, and muscle spasm. Any sensory or motor impairment in the upper extremities due to service-connected disability should be identified.
The rationale for all opinions should also be provided.
3. Then readjudicate the issue on appeal with consideration of all applicable diagnostic codes (DCs) pertaining to low back disorders, to include DCs 5292, 5293, 5295 (2003) and the current criteria listed in 38 C.F.R. Part 4 (2010) (current back criteria). If any decision remains adverse, issue a supplemental statement of the case (SSOC) to the Veteran and allow the appropriate time for response.
The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2009), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).